Opinion
2018–01873 Docket Nos. V–10701–14/17C, 10702–14/17C
03-05-2019
In the Matter of Kenneth GOODE, Appellant, v. Jessica SANDOVAL, Respondent; Kaila G. (Anonymous), et al., Nonparty-Respondents.
Marc A. Greenberg, Elmsford, NY, for appellant. Maurice Dean Williams, Bronx, NY, for respondent. Darren DeUrso, White Plains, NY, attorney for the children, the nonparty-respondents, Kaila G. and Alanna G.
Marc A. Greenberg, Elmsford, NY, for appellant.
Maurice Dean Williams, Bronx, NY, for respondent.
Darren DeUrso, White Plains, NY, attorney for the children, the nonparty-respondents, Kaila G. and Alanna G.
JOHN M. LEVENTHAL, J.P., COLLEEN D. DUFFY, BETSY BARROS, ANGELA G. IANNACCI, JJ.
DECISION & ORDERORDERED that the order is reversed, on the law, without costs or disbursements, the petitions are reinstated, and the matter is remitted to the Family Court, Westchester County, for further proceedings consistent herewith.
The parties are the unmarried parents of two children. In 2014, the mother filed a petition for custody, which resulted in an order being entered on consent, awarding the mother custody and the father parental access as arranged between the parties. The order further provided that the mother "may not relocate without first notifying [the] father in writing prior to said move," and that the father had to be kept informed about the children.
On or about August 30, 2016, the mother relocated with the children from Westchester County to Stamford, Connecticut. According to the mother, she orally notified the father of the relocation, but did not inform him of it in writing.
On March 28, 2017, the father filed violation petitions against the mother alleging, inter alia, that the mother violated the Family Court's order by moving out of state and denying him contact with the children.
Thereafter, the children moved to dismiss the father's petitions on the ground that New York was an inconvenient forum, arguing that it was in the best interests of the children for the Family Court to decline to exercise jurisdiction and for all matters relating to custody to be heard in Connecticut. The mother supported the motion, and the father opposed it.
By order entered January 12, 2018, the Family Court declined to exercise jurisdiction, determining that New York was an inconvenient forum and a court of another state was a more appropriate forum, and granted the motion to dismiss the father's petitions. The father appeals.
Pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act, codified in article 5–A of the Domestic Relations Law (hereinafter UCCJEA), under the circumstances of this case, a court in this State, having made the initial custody determination, has exclusive continuing jurisdiction over that determination because the father still lives in New York (see Domestic Relations Law § 76–a ; Matter of Pauls v. Neathery, 149 A.D.3d 950, 952, 52 N.Y.S.3d 397 ; Matter of Snow v. Elmer, 143 A.D.3d 1217, 1218, 40 N.Y.S.3d 255 ; Matter of Michael McC. v. Manuela A., 48 A.D.3d 91, 96, 848 N.Y.S.2d 147 ).
Pursuant to Domestic Relations Law § 76–f, a court of this State which has jurisdiction under the UCCJEA may decline to exercise it if it finds that New York is an inconvenient forum and that a court of another state is a more appropriate forum (see Domestic Relations Law § 76–f[1] ; Matter of Montanez v. Tompkinson, 167 A.D.3d 616, 618, 90 N.Y.S.3d 62 ; Matter of Mojica v. Denson, 120 A.D.3d 691, 692, 991 N.Y.S.2d 443 ; Matter of Hassan v. Silva, 100 A.D.3d 753, 754, 953 N.Y.S.2d 677 ). "This determination ‘depends on the specific issue(s) to be decided in the pending litigation’ " ( Matter of Snow v. Elmer, 143 A.D.3d at 1218, 40 N.Y.S.3d 255, quoting Matter of Anthony B. v. Priscilla B., 88 A.D.3d 590, 590, 931 N.Y.S.2d 497 ).
" ‘The issue of inconvenient forum dismissal is addressed to Family Court's discretion after consideration of the statutory factors’ " ( Matter of Montanez v. Tompkinson, 167 A.D.3d at 618, 90 N.Y.S.3d 62, quoting Matter of Hissam v. Mancini, 80 A.D.3d 802, 803, 916 N.Y.S.2d 248 ), as set forth in Domestic Relations Law § 76–f(2). The court is required to consider the statutory factors and allow the parties to submit information regarding these factors before determining that New York is an inconvenient forum (see Pyronneau v. Pyronneau, 130 A.D.3d 707, 708, 11 N.Y.S.3d 881 ; Matter of Mojica v. Denson, 120 A.D.3d at 692, 991 N.Y.S.2d 443 ; Matter of Rey v. Spinetta, 8 A.D.3d 393, 394, 777 N.Y.S.2d 746 ). A court's failure to consider the statutory factors is an improvident exercise of discretion (see Matter of Ferris v. Quinones, 44 A.D.3d 854, 854, 843 N.Y.S.2d 676 ; Matter of Rey v. Spinetta, 8 A.D.3d at 394, 777 N.Y.S.2d 746 ; Matter of Dawber v. Kelly, 287 A.D.2d 625, 626, 732 N.Y.S.2d 24 ). Here, the Family Court failed to delineate the factors it considered in determining that New York was an inconvenient forum. Accordingly, we remit the matter to the Family Court, Westchester County, for a new determination of the motion of the children, delineating the factors considered in reaching its conclusion (see Matter of Ferris v. Quinones, 44 A.D.3d at 855, 843 N.Y.S.2d 676 ).
LEVENTHAL, J.P., DUFFY, BARROS and IANNACCI, JJ., concur.